Chairman, Railway Board v Chandrima Das (2000)

Because of one word in Article 21: person. Most of Part III is expressed in favour of citizens. Article 21 is not. This is the case that gives that difference its consequences, and it is the standard authority for the proposition that the fundamental right to life and personal liberty is available to a foreign national on Indian soil.

It is also the case which records the Bangalore Colloquia and the Zimbabwe Declaration on the duty of judges to know international human rights jurisprudence, which is material found almost nowhere else on the syllabus and is therefore worth having.

A Bangladeshi woman was gang raped by railway employees on railway premises. The High Court of Calcutta awarded her compensation. The Railway Board appealed, and the question was whether a non-citizen could claim the protection of Article 21 and obtain compensation in public law from the State for the acts of its employees.

The appeal failed. Upholding the High Court, the Supreme Court held that as a national of another country she could not be subjected to treatment below the dignity of a person, nor could she be subjected to physical violence at the hands of Government employees who outraged her modesty. Her right under Article 21 was violated.

One: Article 21 protects persons, not only citizens. The right is expressed as a protection of no person, and the Court applied it accordingly. This is the constitutional foundation for a very large practical class of claims - refugees, migrants, foreign workers and visitors - and it is the answer to any problem question in which the victim is not an Indian national.

Two: the State is answerable for what its employees do. The wrong was committed by railway employees on railway premises. Compensation was awarded against the State in public law, on the Nilabati Behera footing, not in a private suit against the individuals.

Three: the Declaration and the Covenants bind the interpretation of Indian law. The Court held that "The International Covenants and Declarations as adopted by the United Nations have to be respected by all signatory States and the meaning given to the words in those Declarations and Covenants have to be such as would help in effective implementation of those Rights."

It went on to make the identity claim in its most explicit form: "Our Constitution guarantees all the basic and fundamental human rights set out in the Universal Declaration of Human Rights, 1948, to its citizens and other persons". The purpose of Part III, it said, is to safeguard the basic human rights from the vicissitudes of political controversy and to place them beyond the reach of the political parties who, by virtue of their majority, may come to form the Government at the Centre or in a State.

That last sentence is a gift for any essay on why human rights are entrenched in a written constitution. It gives the reason in one line: majorities change, and the rights must not change with them.

The Court recorded that the domestic application of international human rights norms was considered by the Judicial Colloquia of judges and lawyers at Bangalore in 1988, and that the Colloquia later affirmed that it was the vital duty of an independent judiciary to interpret and apply national constitutions in the light of those principles. Further Colloquia were convened in 1994 at Zimbabwe, in 1996 at Hong Kong and in 1997 at Guyana, and in all of them the domestic application of international and regional human rights, especially in relation to women, was considered.

The Zimbabwe Declaration 1994 stated, among other things: "Judges and lawyers have duty to familiarise themselves with the growing international jurisprudence of human rights and particularly with the expanding material on the protection and promotion of the human rights of women."

Use this. A question on the enforcement of women's human rights, or on the role of the judiciary, is much improved by a dated sequence of international meetings that most candidates will not have.

The Court had to cross two thresholds and it is worth separating them.

The nationality threshold. If Article 21 were confined to citizens, the claim would fail at once. It is not, and the difference in drafting between Article 19, which is expressed in favour of citizens, and Article 21, which is expressed in favour of persons, is deliberate. Dignity is not a privilege of nationality - which is exactly what Article 2 of the Universal Declaration says, in providing that everyone is entitled to all the rights and freedoms set forth in the Declaration without distinction of any kind, and that no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs.

The attribution threshold. The State is not automatically liable for every wrong committed by an employee. Here the wrong was committed by railway servants on railway premises, in circumstances in which the victim was in a position of dependence on the railway administration. That is enough to make the violation the State's own for public law purposes.